People v. Hernandez CA2/7

Filed 1/8/24 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B327701

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA285268-02)
v.

RICARDO HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
 INTRODUCTION

Ricardo Hernandez, who with his codefendant Manuel
Aguirre was convicted of murder in 2006, appeals from the
superior court’s order following an evidentiary hearing denying
his petition for resentencing under Penal Code section 1172.6.1
Hernandez argues substantial evidence did not support the
court’s ruling he could still be convicted of murder as an aider
and abettor who acted with implied malice. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Hernandez of First Degree Murder,
and We Affirm
On March 12, 2005 Efren Gutierrez went to a park to play
basketball. Members of the Avenues Gang frequented the park
and wrote gang graffiti there. Gutierrez was not a gang member,
but he had three tattoos on his hand and arms. He was wearing a
cap with the initials of a Los Angeles baseball team that certain
gang members frequently wear.
Jose Arrieta was an employee of the park and was working
that day. At noon Arrieta spoke with Hernandez near the gym.
Arrieta had known Hernandez for 10 years. Hernandez was
wearing a blue baseball cap and was accompanied by a thin, 12-
to 16-year-old young man, who was approximately five feet three
inches tall and had a dark complexion. Both had bicycles:
Hernandez had a road sport bicycle; the young man had a small
motorized bicycle with high handlebars.

1 Statutory references are to the Penal Code.

2
 Arrieta and Hernandez talked about their tattoos.
Hernandez warned Arrieta to “watch out” for people who might
misinterpret his tattoos. Hernandez told Arrieta, “We’re just
looking to cap fools that are all tatted down.”2 Hernandez added,
“Nah, I’m just messing around.”
Shortly before 3:00 p.m., Richard Enriquez, the park’s
facility director, was in his office in the gym when a man in his
20’s or early 30’s entered. The man, who said his name was
Richie Boy, told Enriquez that he was looking for the park’s
previous director. Richie Boy also told Enriquez not to worry
about the bald guys outside because Richie Boy had them “under
control.” Enriquez testified Hernandez looked like the man who
said he was Richie Boy.
Luis Sanchez worked at the park that day as a basketball
referee and scorekeeper. After finishing work, Sanchez began
walking home, but returned to the park when he realized he had
left his shoes there. As he reached the entrance to the parking
lot, he saw two men next to a car. A darker-skinned, husky man
was standing next to the driver’s side talking to the driver, who
later was identified as Gutierrez. A lighter-skinned, skinny man
opened the passenger door, went into the car, and started hitting
Gutierrez. The lighter-skinned man jumped out of the car and
moved to the driver’s side of the car. The car quickly backed out
of its parking space and then moved forward. Sanchez heard one
shot as the car drove in reverse and a second shot a few seconds
later as the car moved forward. At the time of the second shot,
the lighter-skinned man was standing two feet from the darker-

2 To “cap” means to shoot. (People v. Williams (2015)
61 Cal.4th 1244, 1250.)

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skinned man. After the second shot, Gutierrez slumped to the
side. The car moved forward until it hit a wall and came to a
stop. The wheels continued turning, and the tires burned,
covering the park with smoke. The two men ran out of the park
and down the street. The shooter left behind a bicycle. One of
the men removed his shirt. Sanchez had seen the shooter and
the man who hit Gutierrez go into the office in the gym together
before the shooting. Enriquez saw the smoke three to five
minutes after the man who identified himself as Richie Boy left
Enriquez’s office.
After the shooting Sanchez went in the gym and told
Enriquez someone had been shot. Sanchez went home because
he did not want to be interrogated. Two hours later a car
approached Sanchez as he walked near his home. Someone in
the car told Sanchez “not to say nothing.”
Gutierrez died from a single gunshot wound to the back of
his head. A fingerprint found on the bicycle matched that of
Hernandez.
Sanchez later identified Hernandez from a six-pack
photographic lineup as the man who punched Gutierrez. Sanchez
also identified Aguirre as someone who looked “familiar.”
Sanchez told detectives Aguirre may have been the shooter or the
man who hit Gutierrez. At the preliminary hearing, however,
Sanchez recanted. He testified he had identified Hernandez
because he felt pressured by police. At trial Sanchez testified
Hernandez was not the man he saw at the park. Enriquez
testified Sanchez said he was reluctant to testify because he had
been threatened and he was afraid for his and his family’s safety.
During a weekend recess in Sanchez’s trial testimony, the police

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detained Sanchez for writing “Big Lou” on the sidewalk at the
park.
Carlos F., who was 12 years old, also witnessed the
shooting. Carlos was with his 15-year-old sister, Ivonne F., and
other children on the street outside the park when he heard
someone say “Cypress Avenues 43.” Carlos turned and saw a
man holding a gun next to the driver’s side of a car. Another man
was also standing near the car. Two to three seconds later,
Carlos heard two gunshots. After the gunshots, Carlos saw the
two men ran away. The shooter left his bicycle in the grass, and
the other man rode away on his bicycle.
Ivonne did not see the shooting, but she heard
two gunshots. When she heard the gunshots she hid in some
bushes. After she stepped out of the bushes, a man came running
toward her and bumped into her. Ivonne saw another man riding
his bike toward her.
After Ivonne and Carlos got home, Ivonne told Carlos and
her mother that she thought the man who bumped into her was
“Manuel,” a cousin of her friend Palmira.3 Ivonne had met
Manuel several years earlier when Palmira took Ivonne to his
home. Ivonne also told detectives she thought the man who
bumped into her was Palmira’s cousin Manuel, but she later told
detectives she was 90 percent sure the man was a classmate’s
brother. Carlos identified several men in photographic lineups,
but he did not identify Aguirre or Hernandez.
The People charged Hernandez with one count of
first degree murder (§ 187, subd. (a)). The People alleged a
principal personally and intentionally discharged a firearm

3 As stated, Aguirre’s first name is Manuel.

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proximately causing great bodily injury or death, within the
meaning of section 12022.53, subdivisions (d) and (e). The People
also alleged Hernandez committed the murder for the benefit of,
at the direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist in criminal
conduct by gang members, within the meaning of section 186.22,
subdivision (b)(1)(C).
The trial court instructed the jury, among other things, on
direct aiding and abetting. The court also instructed the jurors
they could find Hernandez guilty of murder under the natural
and probable consequences doctrine if they found Hernandez
intended to aid and abet Aguirre in committing assault with a
firearm or brandishing a firearm.
The jury found Hernandez guilty of first degree murder and
found true the firearm and gang allegations. The trial court
sentenced Hernandez to a prison term of 25 years to life for the
murder conviction, plus 25 years to life for the firearm
enhancement. We affirmed the judgment. (People v. Hernandez
(Aug. 28, 2008, B199067) [nonpub. opn.] (Hernandez I).)

B. The Trial Court Reduces Hernandez’s Conviction to
Second Degree Murder
In 2017 Hernandez filed a petition for writ of habeas corpus
in the superior court seeking relief under the Supreme Court’s
decision in People v. Chiu (2014) 59 Cal.4th 155, which held an
aider and abettor may not be convicted of first degree murder
under the natural and probable consequences doctrine. The
People elected not to retry Hernandez, and the trial court reduced
Hernandez’s first degree murder conviction to second degree

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murder. The court resentenced him to a prison term of 15 years
to life, plus 25 years to life for the firearm enhancement.
Hernandez appealed. We reversed the judgment and
directed the trial court to hold a new sentencing hearing to
exercise its discretion whether to strike the firearm enhancement
under newly amended section 12022.53, subdivision (h), and to
recalculate Hernandez’s custody credit. (People v. Hernandez
(July 31, 2018, B286469) [nonpub. opn.].)

C. The Superior Court Twice Denies Hernandez’s
Petition for Resentencing Under Section 1172.6
In 2019 Hernandez filed a petition for resentencing under
former section 1170.95, now section 1172.6. Hernandez alleged
that the People proceeded against him under a theory of felony
murder or murder under the natural and probable consequences
doctrine, that he was convicted of first or second degree murder
under one of those theories, and that he could not now be
convicted of first or second degree murder because of legislative
changes to sections 188 and 189. The superior court appointed
counsel to represent Hernandez and, after briefing, issued an
order to show cause. The court held an evidentiary hearing and
denied the petition.
We reversed the order denying the petition and directed the
trial court to determine whether the prosecutor proved
Hernandez was ineligible for resentencing under section 1172.6
applying the correct, beyond-a-reasonable-doubt standard.
(People v. Hernandez (Mar. 9, 2021, B303608) [nonpub. opn.].)
The Supreme Court granted the People’s petition for review and
transferred the case to us with directions to vacate our decision
and reconsider the matter in light of recent amendments to

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section 1172.6. We again reversed the order denying the petition
and directed the trial court, as we had before, to determine
whether the prosecutor proved beyond a reasonable doubt
Hernandez was ineligible for resentencing. (People v. Hernandez
(Feb. 14, 2022, B303608) [nonpub. opn.].)
On remand, the superior court held an evidentiary hearing.
The court stated it had reviewed the clerk’s transcript and the
reporter’s transcript from the trial, and the court admitted into
evidence an electronic copy of those records. The court ruled
Hernandez was “ineligible for relief under 1172.6 now, because
the People have proved each and every element of this crime
beyond a reasonable doubt. The evidence is pretty clear, to me,
that he’s a direct aider and abettor.” The court denied
Hernandez’s petition, and Hernandez timely appealed.

DISCUSSION

A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th
981, 986 (Reyes); People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th
698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957).
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and

8
requires proof of malice to convict a principal of murder, except
under the revised felony-murder rule. (Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the superior court to vacate the
conviction and be resentenced on any remaining counts, if he or
she could not now be convicted of murder because of the changes
the Legislature made effective 2019 to the definitions of the
crime. (See People v. Strong, supra, 13 Cal.5th at p. 708; People
v. Lewis, supra, 11 Cal.5th at p. 957; Gentile, supra, 10 Cal.5th at
p. 843.) If a section 1172.6 petition contains all the required
information, the court must appoint counsel to represent the
petitioner, if requested. (Lewis, at pp. 962-963; see § 1172.6,
subd. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
Where, as here, the petitioner has made the requisite
prima facie showing he or she is entitled to relief under
section 1172.6, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1172.6, subd. (d)(1).) At that hearing the
court may consider evidence “previously admitted at any prior
hearing or trial that is admissible under current law,” including
witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and
the prosecutor may also offer new or additional evidence. (Ibid.;
see Gentile, supra, 10 Cal.5th at pp. 853-854.)

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 On appeal from an order denying a petition under
section 1172.6, we review the superior court’s factual findings for
substantial evidence. (People v. Guiffreda (2023) 87 Cal.App.5th
112, 125; People v. Richardson (2022) 79 Cal.App.5th 1085, 1090.)
“In reviewing the trial court’s findings for substantial evidence,
we . . . examine the entire record in the light most favorable to
the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the necessary fact] beyond a reasonable doubt. . . . While the
trial judge must review all the relevant evidence, evaluate and
resolve contradictions, and make determinations as to credibility,
all under the reasonable doubt standard, our job is to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond
a reasonable doubt.” (People v. Pittman (2023) 96 Cal.App.5th
400, 414, internal quotation marks omitted; see Guiffreda, at
p. 125; People v. Clements (2022) 75 Cal.App.5th 276, 298.)
“‘“Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.”’” (People v.
Navarro (2021) 12 Cal.5th 285, 339; see People v. Brooks (2017)
3 Cal.5th 1, 57; People v. Nieber (2022) 82 Cal.App.5th 458, 476.)

B. Substantial Evidence Supported the Superior Court’s
Finding Beyond a Reasonable Doubt Hernandez Is
Ineligible for Relief Under Section 1172.6

1. Applicable Law
“A person who aids and abets the commission of a crime is
culpable as a principal in that crime.” (Gentile, supra, 10 Cal.5th
at p. 843; see People v. Powell (2021) 63 Cal.App.5th 689, 712.)

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“‘[U]nder direct aiding and abetting principles, an accomplice is
guilty of an offense perpetrated by another [e.g., murder] if the
accomplice aids the commission of that offense with “knowledge
of the direct perpetrator’s unlawful intent and [with] an intent to
assist in achieving those unlawful ends.”’” (People v. Curiel
(2023) 15 Cal.5th 433, 463.) Thus, a direct aider and abettor’s
guilt is “‘based on a combination of the direct perpetrator’s acts
and the aider and abettor’s own acts and own mental state.’”
(Powell, at p. 710; see People v. McCoy (2001) 25 Cal.4th 1111,
1117.) “‘[P]roof of aider and abettor liability requires proof in
three distinct areas: (a) the direct perpetrator’s actus reus—
a crime committed by the direct perpetrator, (b) the aider and
abettor’s mens rea—knowledge of the direct perpetrator’s
unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus—
conduct by the aider and abettor that in fact assists the
achievement of the crime.’” (People v. Vargas (2022)
84 Cal.App.5th 943, 953-954; see Curiel, at p. 467.) “‘Among the
factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054; see People v.
Burgos (2022) 77 Cal.App.5th 550, 560, review granted July 13,
2023, S274743.)
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice “may be express
or implied.” (§ 188, subd. (a).) “It is express when there is a
manifest intent to kill.” (Gentile, supra, 10 Cal.5th at p. 844; see
§ 189, subd. (a)(1).) “Murder is committed with implied malice
when ‘the killing is proximately caused by “‘an act, the natural

11
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’”’” (Reyes, supra, 14 Cal.5th at p. 988; see
People v. Pittman, supra, 96 Cal.App.5th at p. 414.) “In short,
implied malice requires a defendant’s awareness of engaging in
conduct that endangers the life of another—no more, and no
less.” (People v. Knoller (2007) 41 Cal.4th 139, 143; accord,
People v. Cravens (2012) 53 Cal.4th 500, 507; People v. Palomar
(2020) 44 Cal.App.5th 969, 974.)
Aiding and abetting implied malice murder remains a valid
theory of liability for second degree murder, even after the
Legislature eliminated natural and probable consequences
liability for murder. (Reyes, supra, 14 Cal.5th at p. 990; Gentile,
supra, 10 Cal.5th at p. 850; People v. Glukhoy (2022)
77 Cal.App.5th 576, 588.) “‘[T]o be liable for an implied malice
murder, the direct aider and abettor must, by words or conduct,
aid the commission of the life-endangering act, not the result of
that act. The mens rea, which must be personally harbored by
the direct aider and abettor, is knowledge that the perpetrator
intended to commit the act, intent to aid the perpetrator in the
commission of the act, knowledge that the act is dangerous to
human life, and acting in conscious disregard for human life.’”
(Reyes, at p. 991; see People v. Curiel, supra, 15 Cal.5th at p. 463;
People v. Pittman, supra, 96 Cal.App.5th at p. 415.) An “‘aider
and abettor who does not expressly intend to aid a killing can
still be convicted of second degree murder if the person knows
that his or her conduct endangers the life of another and acts
with conscious disregard for life.’” (Reyes, at p. 990; see Gentile,
at p. 850.)

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 B. Substantial Evidence Supported the Superior Court’s
Finding Hernandez Directly Aided and Abetted
Murder
Hernandez contends substantial evidence did not support
the superior court’s finding he aided and abetted the murder.
First, Hernandez argues that, because no witness identified him
at the preliminary hearing or at trial, the prosecutor did not
prove Hernandez was “the defendant who committed the crime.”
Second, Hernandez argues that, even if he did participate in the
attack on Gutierrez, he did not aid and abet murder. Neither
contention carries the day.
On the first argument, the “mere filing of a
[section 1172.6] petition does not afford the petitioner a new
opportunity to raise claims of trial error or attack the sufficiency
of the evidence supporting the jury’s findings. . . . ‘The purpose of
[section 1172.6] is to give defendants the benefit of amended
sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that
have already been resolved.’” (People v. Farfan (2021)
71 Cal.App.5th 942, 947; see People v. Berry-Vierwinden (2023)
97 Cal.App.5th 921, 936 [“‘a routine claim of instructional error’”
that “‘could have been asserted on appeal from the judgment of
conviction’” will not support relief under section 1172.6]; People v.
Burns (2023) 95 Cal.App.5th 862, 865 [“[s]ection 1172.6 does not
create a right to a second appeal,” and a petitioner “cannot use it
to resurrect a claim that should have been raised in his . . . direct
appeal”].) In convicting Hernandez of murder, the jury found
Hernandez was one of the perpetrators of the crime. In his direct
appeal Hernandez challenged the sufficiency of the evidence

13
supporting the jury’s verdict, including the finding he and
Aguirre were present at the scene of the crime, and we concluded
substantial evidence supported the verdict. We stated “the
evidence places defendants at the scene of the crime, gives them
a motive for committing the crime, and identifies them as the
perpetrators of the crime. There is evidence from which the jury
reasonably could infer that the witnesses recanted their
identification testimony or claimed an inability to identify
defendants due to fear or intimidation. There thus is a
hypothesis under which the jury could have found the evidence
consistent with guilt, and substantial evidence supports the
identification of defendants as the perpetrators of the crime.”
(Hernandez I, supra, B199067.) The legislative changes to
sections 188 and 189 do not affect whether substantial evidence
supported the jury’s finding Hernandez was one of the
perpetrators. Hernandez may not relitigate the issue in a
petition under section 1172.6. (See People v. Coley (2022)
77 Cal.App.5th 539, 549 [a section 1172.6 petition “is not a means
by which a defendant can relitigate issues already decided”];
People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6
“does not permit a petitioner to establish eligibility on the basis of
alleged trial error”].)
In any event, substantial evidence supported the superior
court’s finding Hernandez was one of the perpetrators. The
evidence was uncontradicted Hernandez was at the park before
the shooting. Arrieta spoke with Hernandez at 12:00 p.m., and
Sanchez saw Hernandez and Aguirre in the gym before the
shooting. Sanchez identified Hernandez from a six-pack
photographic lineup as the man who hit Gutierrez. Although at
trial Sanchez recanted his identification of Hernandez, the

14
superior court could reasonably infer Sanchez’s statement to
police was more credible than his in-court testimony in the
presence of Hernandez, Aguirre, and their families because
Sanchez feared retaliation by the Avenues gang. Sanchez was
threatened after the shooting, and he later told Enriquez he was
reluctant to testify because he feared for his family’s safety. As
the superior court judge (who was also the trial judge in the case)
stated, “I saw these witnesses, they were very reluctant, very
scared when they came into this court, and it obviously affected
their testimony.” (See People v. Sifuentes (2022) 83 Cal.App.5th
217, 233 [“‘“it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends”’”].)4
On the second argument, Hernandez contends that, even if
he did hit Gutierrez, he did not aid and abet murder with implied
malice. Hernandez contends there was no evidence he knew
Aguirre had a gun or intended to shoot Gutierrez. Hernandez
further contends that he did not intend to aid Aguirre in the
shooting and that his act of punching Gutierrez did not cause his
death or “make him susceptible to being shot.”
Substantial evidence supported the superior court’s finding
Hernandez aided and abetted the murder with implied malice.

4 Although Sanchez’s identification of Hernandez was not the
only evidence connecting him to the crime, a repudiated out-of-
court identification can be enough to support a conviction.
(People v. Cuevas (1995) 12 Cal.4th 252, 271-272; see People v.
Gaines (2023) 93 Cal.App.5th 91, 138 [repudiated extrajudicial
statements were “sufficient without corroboration to form the
basis of [the defendant’s] conviction if the evidence against him
otherwise meets the substantial evidence test”].)

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First, there was substantial evidence Hernandez had the
requisite mens rea—that Hernandez knew Aguirre intended to
shoot Gutierrez, intended to aid him in shooting Gutierrez, and
acted with conscious disregard for human life. (See Reyes, supra,
14 Cal.5th at p. 991.) There was evidence that the Avenues gang
controlled the park and that someone said “Cypress Avenues 43”
after Aguirre shot Gutierrez. Hernandez told Enriquez not to
worry about the guys outside because he had them “under
control.” Before Aguirre shot Gutierrez (who had tattoos on his
hand and arms), Hernandez told Arrieta that he and his
companion were looking to shoot people with certain tattoos,
which the court reasonably interpreted to mean Hernandez “was
aware that someone in that crowd had a gun and was going to
use it.” The court could reasonably infer that Aguirre and
Hernandez were members of the Avenues gang, that the Avenues
gang claimed the park as its territory, that Aguirre and
Hernandez were looking for members of other gangs to shoot, and
that Aguirre shot Gutierrez because he looked like a (rival) gang
member. (See People v. Chhoun (2021) 11 Cal.5th 1, 32 [“While
not itself an element of the crimes, motive can illuminate
intent.”].)
Substantial evidence also supported the superior court’s
finding Hernandez assisted in achieving the crime (actus reus).
Hernandez went into Gutierrez’s car, hit him, and got out of the
car before Aguirre shot Gutierrez. Hernandez asserts his attack
on Gutierrez in the car “did not contribute to or cause Gutierrez’s
death,” but an aider and abettor of murder does not have to cause
a death; he or she must “aid the commission of the life-
endangering act” (Reyes, supra, 14 Cal.5th at p. 991), which the
superior court reasonably concluded Hernandez did. As the court

16
stated, Hernandez “soften[ed] the guy with a punch, at the same
time distracting him from the shooter.”
Hernandez argues that Aguirre’s act of shooting Gutierrez
was “a completely separate criminal act” from Hernandez’s act of
punching Gutierrez and that, “on the issue of the shooting,”
Hernandez was “merely present.” But the evidence showed, as
the court described it, “a coordinated effort”: After Hernandez hit
Gutierrez, Hernandez got out of the car on the passenger side,
moved to the driver’s side, and stood next to Aguirre while
Aguirre shot Gutierrez. The court reasonably inferred
Hernandez got “out of the car and out of the line of fire so he
doesn’t get shot.” (See People v. Campbell (1994) 25 Cal.App.4th
402, 409 [defendants’ “concerted action reasonably implie[d] a
common purpose”].) That Hernandez and Aguirre were at the
park together before the shooting and fled together after the
shooting was additional evidence Hernandez intended to assist
Aguirre in shooting Gutierrez. (See People v. Burgos, supra,
77 Cal.App.5th at p. 560 [substantial evidence supported the
defendant’s conviction for aiding and abetting a robbery where
the defendant “was a ‘continuous constituent’ of the group that
committed the robbery—before, during, and after the offense”],
review granted; People v. Abelino (2021) 62 Cal.App.5th 563, 578
[presence at the scene of the crime and failure to take steps to
prevent a crime may be “considered together with other evidence
in determining that a person is an aider and abettor”]; People v.
Lara (2017) 9 Cal.App.5th 296, 322 [“‘conduct before and after
the offense,’ including ‘flight,’” is a factor determining whether a
defendant aided and abetted a crime].)

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 DISPOSITION

The superior court’s order denying Hernandez’s petition
under section 1172.6 is affirmed.

SEGAL, Acting P. J.

We concur:

FEUER, J.

MARTINEZ, J.

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